Date: 20080730
Docket: IMM-179-08
Citation:
2008 FC 908
Montréal, Quebec, July 30, 2008
PRESENT:
The Honourable Mr. Justice Maurice E. Lagacé
BETWEEN:
KIRPAL SHARMA
SANTI SHARMA
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Pursuant to section 72(1) of the Immigration
and Refugee Protection Act,
S.C. 2001, c. 27 (the Act), the applicants are seeking judicial review of a
decision by the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated December 13, 2007, which refused to recognize them as
Convention refugees or persons in need of protection under sections 96 and 97 of
the Act.
I.
Facts
[2]
The
principal applicant, Mr. Kirpal Sharma, and his wife, Santi Sharma, were born
in Delhi, and both
are Indian citizens.
[3]
After
one of the principal applicant’s cars exploded at the car rental business owned
by him and his son, on October 29, 2005, the police arrested his son, and the
applicants lost all contact with him, despite their efforts to find him.
[4]
After
receiving a call from the hospital on November 13, 2005, the applicants went to
identify the body of their son. Although cerebral hemorrhage was given as the
official cause of death, the applicants maintain that their son was tortured.
[5]
On
November 21, 2005, the police arrested the principal applicant at his business,
accused him of being involved in the October 29, 2005, explosion, threatened to
kill him like his son and subsequently questioned and tortured him.
[6]
The
principal applicant was released on November 26, 2005, for medical reasons, subsequent
to an intervention by a local political representative, payment of a bribe to
police and a promise to not leave the city.
[7]
After
his release, the principal applicant and his wife sought refuge at a friend’s
home, and while there, he took steps to leave the country, fearing that the
police would find him.
[8]
The
applicants left Delhi on June 4, 2006, and travelled by way of Paris before
arriving in Montréal the same day. They subsequently claimed refugee status.
[9]
Because
of doubts about their identities, the truthfulness of their stories and the
authenticity of their documents, Canada Border Services Agency decided on June
12, 2006, to detain the applicants.
[10]
On
July 4, 2007, counsel filed an application on behalf of the applicants asking
that a representative be designated for the hearing of their application,
pursuant to subsection 167(2) of the Act. Since there was no evidence that the
applicants were unable to appreciate the nature of the proceedings, as
the Act requires, the application was denied. However, considering the
applicants’ vulnerability as shown by the medical evidence, the panel ordered
that they could be accompanied at the hearing by a person of their choice for
moral support.
[11]
The
Board heard the applicants’ application for refugee protection and dismissed
it. That negative decision is the basis for this application for judicial
review.
II. Impugned
decision
[12]
After
noting a number of contradictions and inconsistencies in the applicants’ story,
the Board concluded as follows:
Based on all the foregoing, PC [Principal
Claimant] was found not to be credible. FC’s claim fell as her claims was based
on her husband’s, PC, claim. They failed to establish the well-foundedness of
their fear with credible evidence.
The panel therefore has determined the
claimants, Kirpal SHARMA and Santi SHARMA, not to be “Convention
refugees’ and that they are not “persons in need of protection”. Hence, it
rejects their claims for refugee protection.
III. Issue
[13]
The
only issue is whether the Board breached procedural fairness. Specifically, did
the Board’s procedure and decision take into account the vulnerability of the
applicants and the Chairperson’s Guideline with respect to vulnerable persons?
IV. Standard
of review
[14]
There
are now only two standards of review, correctness and reasonableness (Dunsmuir
v. New
Brunswick,
2008 SCC 9). Correctness is the appropriate standard for jurisdictional and
some other questions of law (see Dunsmuir, above,
at paragraph 50). When applying the correctness standard, a reviewing
court will not show deference to the decision maker’s reasoning process; it
will rather undertake its own analysis of the question. The analysis will bring
the court to decide whether it agrees with the determination of the decision
maker.
[15]
With respect to the duty of procedural fairness,
the appropriate standard of review continues to be correctness, and a breach of
procedural fairness will result in the decision being set aside.
[16]
Considering the nature of the only issue here,
the appropriate standard of review is correctness.
V. Analysis
[17]
The
applicants are advancing essentially two types of arguments. First, they state
that the Board did not take into account their psychological vulnerability,
despite the report of certain intervenors and their counsel’s application to
the Board to have a representative designated because they were not able to
represent themselves adequately at the hearing. The applicants also maintain that,
despite the Board’s refusal to designate a representative for them, the Board
did not provide any specific measure to take into account their vulnerable
state.
[18]
Second,
the applicants rely on the Chairperson of the Board’s Guideline 8 (Guideline 8)
and submit that the Board was required to take their vulnerability into
account, which it did not do. They contend that the Board completely
disregarded their psychological vulnerability when assessing their story.
Accordingly, the Board automatically attributed some inconsistencies in their
story to a lack of credibility, whereas those inconsistencies could very well
have been attributed to the applicants’ psychological fragility.
[19]
However,
the applicants’ psychological vulnerability should not be confused with that of
a person who is unable to appreciate the nature of the proceedings or the
questions at a hearing before the Board. It is for the Board to determine
whether an applicant requires a designated representative, based on the
individual’s apparent understanding (or lack thereof) of the proceedings and
the questions.
[20]
Although
the Board decided it was unnecessary to designate a representative to represent
the applicants at the hearing of their application, an acting coordinating
member of the Board nonetheless considered the applicants to be vulnerable
persons; that is why an order was made pursuant to paragraph 4.2 of
Guideline 8 that the applicants could be accompanied at the hearing by a
person of their choice to provide moral support to them.
[21]
At
the hearing, the applicants benefited from this moral support. Moreover, their
counsel did not ask the Board for any other type of procedural accommodation or
any other measure that could minimize the psychological vulnerability of his
clients. It is difficult for the applicants to now argue that the Board failed
to consider their vulnerability when all the intervenors at the hearing,
including the applicants, seemed satisfied with the procedure that was adopted.
[22]
Section
167 of the Act provides as follows:
|
167. (1) Both a person who is the subject of Board proceedings and the
Minister may, at their own expense, be represented by a barrister or
solicitor or other counsel.
|
167. (1) L’intéressé peut en tout cas se faire
représenter devant the Board, à ses frais, par un avocat ou un autre conseil.
|
|
(2) If a person who is the subject of proceedings is
under 18 years of age or unable, in the opinion of the applicable Division,
to appreciate the nature of the proceedings, the Division shall designate a
person to represent the person.
|
(2) Est commis d’office un représentant à l’intéressé
qui n’a pas dix-huit ans ou n’est pas, selon la section, en mesure de
comprendre la nature de la procédure.
|
|
[Emphasis
added.]
|
|
Thus, the Board designates a representative
where the claimant is under 18 years of age or is unable to appreciate the
nature of the proceedings. This does not seem to be the case here.
[23]
Since
both applicants in this case are over the age of 18, the issue is whether they
were able to appreciate the nature of the proceedings; however, their argument
is essentially based on the Board’s refusal to designate a representative for
them for the hearing because of their fragile psychological state, not because
they were unable to appreciate the nature of the proceedings.
[24]
Contrary
to the applicants’ submissions, the Board noted in its reasons:
The panel noticed no
significant problems in the manner both claimants delivered their testimonies.
PC [Principal Applicant] provided all the answers with no hesitation, had good
eye contact and was confident in the way he testified.
No one other than the person presiding at
the hearing was in a better position to assess the way the applicants
testified, to verify if their psychological vulnerability prevented them from properly
responding to the questions or understanding them, and to assess their
credibility.
[25]
The
Court also notes that neither the intervenor who accompanied the applicants for
moral support nor their counsel made any objection that would suggest that the
applicants did not understand the questions or the procedure or that the Board
should provide them with other accommodations.
[26]
After
reviewing the transcript of the testimony, the Court must find that the applicants
appeared to have understood both the questions and the nature of the proceedings.
Assisted by counsel who looked after their interests, and by the shoulders of a
support person ordered by the Board, the applicants were able to answer the
questions with full knowledge of the situation. It was open to the Board to
dismiss their application for a representative and to uphold that decision,
absent evidence before or during the hearing that the applicants were unable to
understand the nature of the proceedings or the questions.
[27]
We
note that “the intention of Guideline [8] is to
provide procedural accommodation(s) for individuals who are identified as
vulnerable persons by the Board.” These accommodations aim to take into account
the vulnerability of certain individuals “so that they are not disadvantaged in
presenting their cases.”
[28]
Paragraph
4.2 of Guideline 8 states that the “Division has a
broad discretion to tailor procedures to meet the particular needs of a
vulnerable person . . . ” One of the methods listed to tailor procedures is “allowing
a support person to participate in a hearing”. This support was provided by the
Board when it allowed the intervenor Woodbury to attend the hearing as
moral support for the applicants.
[29]
In
light of the foregoing, the Court finds that the Board considered the
applicants’ psychological state and put into place the necessary accommodations
contemplated by Guideline 8. From the members’ attitude and comments, the Board
appears to have been alive to the applicants’ situation, to have adjusted the
proceedings accordingly and to have been prepared to make further adjustments
to facilitate their testimony and proper comprehension. The Board was not
required to mention this expressly in its reasons but nonetheless noted that
the applicants had no difficulty in testifying. Accordingly, it is difficult
for the Court to find that there was a breach of procedural fairness. For these
reasons, the Court does not see how the Board breached procedural fairness.
[30]
As
for the rest, the applicants were unable to demonstrate how the Board’s
decision could be unreasonable. On the contrary, it
is one of the possible acceptable outcomes and can be justified in fact and in
law. Deference must therefore be given to this decision. The applicants’
application will therefore be dismissed.
[31]
Since
the applicants did not propose any question for certification, none will be
certified.
JUDGMENT
FOR THESE REASONS, THE
COURT:
Dismisses the
application for judicial review.
“Maurice
E. Lagacé”
Certified
true translation
Mary
Jo Egan, LLB
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